Autonomy/Freedom Framework

The value criterion is...minimizing violations of autonomy.

Here are some of the best justifications for a autonomy/freedom framework.

I value morality.

Any ethical theory must begin with the acknowledgment of individual freedom – absent any knowledge of rightness; the option that minimizes moral risk is to allow individual choice in situations where only the agent is affected. Any other judgment requires proactive justification, which can be questioned. Three additional warrants –

First, any external imposition of a conception of moral good is morally bankrupt – since people lack total life plans and have varying choices, ethics demands a rights based theory.

Mackie 78 Mackie, John L (chair of philosophy in the University of York, a position he held until 1967 when he was instead elected a fellow of University College, Oxford, where he served as praelector). "Can There be a Right‐Based Moral Theory?" Midwest Studies in Philosophy 3.1 (1978): 350-359

But even this is not enough. A plausible goal, or good for man, would have to be something like Aristotle's eudaimonia: it would be in the category of activity. It could not be just an end, a possession, a termination of pursuit. The absurdity of taking satisfaction in the sense in which it is such a termination as the moral goal is brought out by the science-fictional pleasure machine described by Smart.0 But Aristotle went wrong in thinking that moral philosophy could determine that a particular sort of activity constitutes the good for man in general, and is objectively and intrinsically the best way of life. People differ radically about the kinds of life that they choose to pursue. Even this way of putting it is misleading: in general people do not and cannot make an overall choice of a total plan of life. They choose successively to pursue various activities from time to time, not once and for all. And while there is room for other sorts of evaluation of human activities, morality as a source of constraints on conduct cannot be based on such comparative evaluations.’ I suggest that if we set out to formulate a goal-based moral theory, but in identifying the goal try to take adequate account of these three factors, namely that the “goal” must belong to the category of activity, that there is not one goal but indefinitely many diverse goals, and that they are the objects of progressive (not once-for-all or conclusive) choices, then our theory will change insensibly into a rights based one. We shall have to take as central the right of persons progressively to choose how they shall live.

Second, respect for autonomy is the basis of any system of mutual accountability since it gives the greatest and most equal weight to all interests

Let me begin by considering at the most abstract level what is involved in moral reasoning. Every moral theory has some conception of treating others as equal in certain ways to oneself. For the utilitarian, this is represented by treating the interests of each alike in the calculation of utility. For the natural rights theorists, all persons are assumed to have equal rights. For the Kantian, I may only act in ways in which I am prepared to accept that all others act. Corresponding to these notions of equality are conceptions of moral justification. For the utilitarian, it is to see that the action is justified from the point of view of an impartial observer considering what would maximize utility. For the rights theorist and the Kantian, a justification must be acceptable to each individual. Each in- dividual has a veto over what may be done to him. All these theories share the view that what we are allowed to do must reflect in some way the preferences of those who are affected by what we do. This reflection may be simple - the utilitarian's equal weighing of everybody's preferences. Or it may be more complex as in Rawls's contention that certain preferences may be ignored; roughly, those that aim at states of affairs that would violate the principles ofjustice. For various strong theories of nat- ural rights, autonomy is preserved by requiring unanimous consent to restrictions of liberty. Further, all these theories accept some idea of choice under conditions of procedural independence. These may be specified indi- rectly as with the utilitarian claim that each person is the best judge of his own interests. Or they may be built into the metatheory, as with Rawls's rejection of "threat-advantage," and the requirement of unanimity. Underlying the various ideas of moral justification is a prohibition against treating people in such a way that they cannot share the purposes of those who are so treating them. This is brought out in Kant's theory in the idea of using people simply as a means to one's own ends. It underlies the emphasis on publicity in Rawls's theory. Behind these common assumptions is a shared conception of what a person is. What makes an individual the particular person he is is his life-plan, his projects. In pursuing autonomy, one shapes one's life, one constructs its meaning. The autonomous person gives meaning to her own his life.

This coopts util--if we value pleasure and pain we would value agents’ ability to define their methods of how to reach their subjective happiness.

Third, ethics begins at the point of interaction of free agents – conflicting interests require second-person justification and mutual accountability

The fundamental contractualist notion is rather of a kind of agreement that essentially involves justification to one another. What is it, however, to justify oneself to someone? It is not, it is important to see, simply to present a justification in someone’s presence, or even only to exhibit to someone good reasons for something one did. Suppose you are wondering where to spend your vacation and you ask me where I went and whether I would do it over again. I tell you about my experi- ence camping at Kookamanga State Park and why I was pleased with my decision to go there. I have certainly given you reasons, and in that sense a justification, for what I did. Yet have I justified my choice to you? It seems ludicrous to suppose that I have. For that to be true, either you or I would have had to have taken you to have had some claim to a justification from me. Imagine saying, “Would you please justify your vacation choice to me?” or even something more polite that implies a request for such a justification. These seem clearly different. To justify oneself to someone is to give her a kind of second-personal authority.11 It is to regard and treat her as having a standing to claim a justification from one (and hence to address claims to others at all). Second-personal authority of this kind is essentially tied to accountability. Justifying oneself to someone is part of holding oneself responsible or accountable to her. So justification to one another is what constitutes mutual accountability. When I justify myself to you, I hold myself answerable to you, and treat you as having the standing to claim this from me. You reciprocate and accord me the same standing when you justify yourself to me. As I understand it, therefore, the root contractu- alist idea is that this standing is one that you and I share. We have an equal (second-personal) authority to make claims of one another, which we respect in seeing each other as beings to whom we should be able to justify ourselves. Understanding morality in terms of mutual accountability illuminates why Scanlon can say in “Contractualism” that agreement (of this sort) is what “morality is all about.” If moral self-regulation essentially involves making ourselves answerable to one another, then agreement on fundamental principles is not simply a collective epistemic achievement, or a standard of our each doing what is right individually; it is an essential element of the fundamental moral relation (responsibility to one another). This idea is suggested also by the passages from “Preference” and “Process” quoted above. Urgency or importance of interests is justificatory weight in warranting claims on others. The question of when practices or institutions are legitimate in light of their “power to control or intervene” turns on when this is consistent with individuals’ legitimate claims. This interpretation is confirmed further by the way Scanlon distinguishes the concepts of reasonableness and rationality in What We Owe to Each Other.12 To bring out this “familiar distinction in ordinary language,” Scanlon describes a case in which water rights are being negotiated and there is a wealthy landowner who can control the negotiations, who believes himself entitled to his vast holdings, and who does not like having “the legitimacy of his position questioned” (p. 192). Scanlon says that while it would not be unreasonable to propose that each person is entitled to some minimum supply of water, it might not be rational to make this claim, since that might enrage the large landholder and make the situation worse for everybody (p. 192). Unlike the concept of the rational, that of the reasonable “presupposes a certain range of reasons that are taken to be relevant” (p. 192). We can now see what this range must be. Scanlon must be taking it to be part of the very idea of the reasonable, and hence of the notion of reasonable agreement, that the relevant reasons concern, or are able to support, legitimate claims. They must be ones we could offer in justifying ourselves to one another. Furthermore, to play that role, they must be ones that we can accept consistently with what we assume in so justifying ourselves, namely, that we each have an equal basic second-personal authority. Since we all stand, fundamentally, in the relation of mutual accountability and have an equal standing to claim justification from one another, unequal claims must be able to be justified within that framework. They must be sup- portable from a standpoint in which we regard one another, as Rawls put it, as “self-originating sources of valid claims.”13

Takes out util since any abstract imposition of the good is impossible – only person to person justification is universal

However, state intervention will inevitably affect our choices--

A: Agents will use legal defaults as the basis for choices – since they have no well-formed preferences on certain issues, they will simply maintain whatever status quo the state chooses

Thaler 1 Richard H. Thaler (Robert P. Gwinn Professor of Economics and Behavioral Science, University of Chicago Graduate School of Business) and Cass R. Sunstein (Karl N. Llewellyn Distinguished Service Professor, Law School and Department of Political Science, University of Chicago), "Libertarian Paternalism Is Not an Oxymoron" (John M. Olin Program in Law and Economics Working Paper No. 185, 2003) AJ

The first misconception is that there are viable alternatives to paternalism. In many situations, some organization or agent must make a choice that will affect the behavior of some other people. There is, in those situations, no alternative to a kind of paternalism -- at least in the form of an intervention that affects what people choose. We are emphasizing, then, the possibility that people’s preferences, in certain domains and across a certain range, do not predate the choices made by planners.15 The point applies to both private and public actors, and hence to those who design legal rules as well as to those who serve consumers. As a simple example, consider the cafeteria at some organization. The cafeteria must make a multitude of decisions, including which foods to serve, which ingredients to use, and in what order to arrange the choices. Suppose that the director of the cafeteria notices that its customers have a tendency to choose more of the items that are presented earlier in the line. How should the director decide in what order to present the items? To simplify, consider some alternative strategies that the director might adopt in deciding which items to “feature” early in the line: 1. She could make choices that she thinks would make the customers best off, all things considered. 2. She could make choices at random. 3. She could choose those items that she thinks would make the customers as obese as possible. 4. She could give consumers what she thinks they would choose on their own. Option 1 appears to be paternalistic, but would anyone advocate options 2 or 3? Option 4 is what anti-paternalists would favor, but it is much harder to implement than it might seem. Across a certain domain of possibilities, consumers will often lack well- formed preferences, in the sense of preferences that are firmly held and preexist the directors’ own choices about how to order the relevant items. If the arrangement of the alternatives has a significant effect on the selections the customers make, then their true “preferences” do not formally exist. Of course market pressures will impose a discipline on the choices of cafeteria directors, and to that extent, those directors must indeed provide people with what they want. A cafeteria who faces competition and offers healthy but terrible-tasting food is unlikely to do well. But some of the time, market success will come not from tracking people’s ex ante preferences, but from providing goods and services that turn out, in practice, to promote their welfare, all things considered. Consumers might be surprised by what they end up liking; indeed, their preferences might change as a result of consumption.16 And in some cases, the discipline imposed by market pressures will nonetheless allow the director a great deal of room to maneuver, because people’s preferences are not well-formed across the relevant domains. Some libertarians will happily accept this point for private institutions. Their objection will be to government efforts to reject choice in the name of welfare. Skepticism about government might be based on the fact that governments are disciplined less or perhaps not at all by market pressures. Or such skepticism might be based on the fear that parochial interests will drive government in their preferred directions (the public choice problem17). We agree that for government, the risks of mistake and overreaching are real and sometimes serious. But governments, no less than cafeterias (which governments frequently run), have to provide starting points of one or another kind; this is not avoidable. As we shall emphasize, they do so every day through the rules of contract and tort, in a way that inevitably affects some preferences and choices.18 In this respect, the antipaternalist position is unhelpful, a literal nonstarter.

B: The state has to have some default set of rules – even the lack of rules favors certain outcomes, so the notion of a “minimal state” being the one that makes the least laws is wrong

Thaler 2 Richard H. Thaler (Robert P. Gwinn Professor of Economics and Behavioral Science, University of Chicago Graduate School of Business) and Cass R. Sunstein (Karl N. Llewellyn Distinguished Service Professor, Law School and Department of Political Science, University of Chicago), "Libertarian Paternalism Is Not an Oxymoron" (John M. Olin Program in Law and Economics Working Paper No. 185, 2003) AJ

Default rules. Default rules of some kind are inevitable, and much of the time, those rules will affect preferences and choices.43 In the neglected words of a classic article, a “minimum of state intervention is always necessary. . . . When a loss is left where it falls in an auto accident, it is not because God so ordained it. Rather it is because the state has granted the injurer an entitlement to be free of liability and will intervene to prevent the victim’s friends, if they are stronger, from taking compensation from the injurer.”44 If the entitlement-granting rules seem invisible, and to be a simple way of protecting freedom of choice, it is because they appear so sensible and natural that they are not taken to be a legal allocation at all. But this is a mistake. What we add here is that when a default rule affects preferences and behavior, it is having the same effect as employer presumptions about savings plans. This effect is often significant. So long as people can contract around the default rule, it is fair to say that the legal system is protecting freedom of choice, and in that sense complying with libertarian goals. Consumers, workers, and married people,45 for example, are surrounded by a network of legal allocations that provide the background against which agreements are made. As a matter of employment law, and consistently with freedom of contract, workers might be presumed subject to discharge “at will,” or they might be presumed to be protected by an implied right to be discharged only “for cause.” They might be presumed to have a right to vacation time, or not. They might be presumed to be protected by safety requirements, or the employer might be free to invest in safety as he wishes, subject to market pressures. In all cases, the law must establish whether workers have to “buy” certain rights from employers or vice versa.46 Legal intervention, in this important sense, cannot be avoided. The same is true for consumers, spouses, and all others who are involved in legal relationships. Much of the time, the legal background matters, even if transactions costs are zero, because it affects choices and preferences.47 Here, as in the private context, a form of paternalism is unavoidable. In the context of insurance, an unplanned, natural experiment showed that the default rule can be very “sticky.”48 New Jersey created a system in which the default insurance program for motorists included a relatively low premium and no right to sue; purchasers were allowed to deviate from the default program and to purchase the right to sue by choosing a program with that right and also a higher premium. By contrast, Pennsylvania offered a default program containing a full right to sue and a relatively high premium; purchasers could elect to switch to a new plan by “selling” the more ample right to sue and paying a lower premium. In both cases, the default rule tended to stick. A strong majority accepted the default rule in both states, with only about 20 of New Jersey drivers acquiring the full right to sue, and 75 of Pennsylvanians retaining that right.49 There is no reason to think that the citizens of Pennsylvania have systematically different preferences from the citizens of New Jersey. The default plan is what produced the ultimate effects. And indeed controlled experiments find the same results, showing that the value of the right to sue is much higher when it is presented as part of the default package.50 In another example, a substantial effect from the legal default rule was found in a study of second-year and third-year law student reactions to different state law provisions governing vacation time from firms.51 The study was intended to be reasonably realistic, involving as it did a pool of subjects to whom the underlying issues were hardly foreign. Advanced law students have devoted a good deal of time to thinking about salaries, vacation time, and the tradeoffs among them. The study involved two conditions. In the first, state law guaranteed two weeks of vacation time, and students were asked to state their median willingness to pay (in reduced salary) for two extra weeks of vacation.52 In this condition, the median willingness to pay was $6000. In the second condition, state law provided a mandatory, nonwaivable two-week vacation guarantee, but it also provided employees (including associates at law firms) with the right to two additional weeks of vacation, a right that could be “knowingly and voluntarily waived.” Hence the second condition was precisely the same as the first, except that the default rule favored the two extra weeks of vacation. In the second condition, students were asked how much employers would have to pay them to give up their right to the two extra weeks. All by itself, the switch in the default rule more than doubled the students’ responses, producing a median willingness to accept of $13,000.53 We can imagine countless variations on these experiments. For example, the law might authorize a situation in which employees have to opt into retirement plans, or it might require employers to provide automatic enrollment and allow employees to opt in. Both systems would respect the freedom of employees to choose, and thus either system would be libertarian in that sense. In the same vein, the law might assume that there is no right to be free from age discrimination in employment, permitting employees (through individual negotiation or collective bargaining) to contract for that right -- or it might give employees a nondiscrimination guarantee, subject to waiver via contract. Our suggestion here is that one or another approach is likely to have effects on the choices of employees. This is the sense in which paternalism is inevitable, from government no less than from private institutions.

Furthermore, respecting autonomy necessitates respecting the autonomous wishes of the deceased—non-interference fails when used in the context of the autonomy of the deceased—prefer the action with the fewest violations of autonomy

Taylor ‘6 James Stacey Taylor, Associate Professor of Philosophy at the University of New Jersey, “Personal Autonomy, Posthumous Harm, and Presumed Consent Policies for Organ Procurement,” Public Affairs Quarterly, October,http://www.jstor.org/stable/40441450AZ

Gill begins his argument for this claim by distinguishing between two models of respect for autonomy. . . . The first is what we can call the non-interference model of autonomy: it tells us that it is wrong to interfere with a person's body unless the person has given us explicit permission to do so. The second is what we can call the respect-f or- wishes model of autonomy: it tells us that we ought to treat a person's body in the way that she wishes it to be treated.21 With these two models of respect for autonomy in place, Gill argues that the respect-for-wishes model should direct our treatment of persons' postmortem bodies. Gill argues that it would not be reasonable to use the non-interference model of respect for autonomy to govern our treatment of persons' postmortem bodies, because this model implies that we should do nothing to them if the persons whose bodies they were left no specific instructions concerning their treatment. But such complete non-interference is impractical. We would not, for example, simply leave such persons' bodies where they fell. Given this, infers Gill, we should use the respect-for-wishes model of respect for autonomy to govern our treatment of persons' postmortem bodies. And on this model, Gill holds, "each type of mistake is on a moral par, for each type of mistake involves treating a person's body in a way that the person did not want."22 Thus, concludes Gill, if . . . our goal is to respect the autonomy of brain-dead individuals, we have no choice but to operate under the respect-for-wishes model of autonomy.

There is a distinction between respecting and violating autonomy—because it’s impossible to respect the capacity to make decisions of the deceased, prefer the least violations of their autonomy. Respect means to recognize their capacity to set decisions while to violate means to prevent them from exercising that capacity.

Thus, my standard is minimizing violations of autonomy.

Util impacts don’t link because only direct violations to autonomy matter and the preservation of a system which allows ability to pursue your ends. Also, we don’t maximize autonomy, so arguments that increase welfare don’t link either.

[This framework originally and generously contributed by PV Peninsula.]